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concerned that should the ICC become identi¬ed with their peacekeeping
efforts, peacekeepers™ neutrality might be doubted. MONUC™s initial
mandate, established by the UNSC well before the ICC had come into
existence, had not included the pursuit of international justice.70
When MONUC was reauthorized by the Security Council in October
2004, its mandate was expanded to include efforts to assist in countering
impunity and bringing serious violators of human rights and international
humanitarian law to justice.71 Presumably out of deference to U.S. oppo-
sition to the Court, the new mandate language did not mention the ICC at
all, but it could be used by the UN and MONUC to justify their interactions

70
The MONUC mandate under Security Council Resolution 1291 (2000) of February 24,
2000, focused on the cease-¬re, disengagement, monitoring of forces, control of military
supplies, aid in humanitarian measures, ˜˜with particular attention to vulnerable groups
including women, children and demobilized child soldiers™™ [emphasis added], in close
cooperation with other United Nations agencies, related organizations, and
nongovernmental organizations; it was to cooperate closely with the facilitator of the
national dialogue, help with de-mining, and protect its own and related UN forces and
personnel.
71
Under Resolution 1565 (2004) of October 1, 2004, the Security Council revised the
mandate and increased MONUC™s force level to 17,175. New aspects of the mandate were
to establish links with the UN Operation in Burundi (ONUB) and with the governments of
the DRC and Burundi, to coordinate monitoring efforts and discourage cross-border
movements of combatants between the two countries, and to monitor the arms ¬‚ow on the
lakes, inspect aircraft, and other transport vehicle cargoes in the ports, airports, air¬elds,
military bases, and border crossings in North and South Kivu and Ituri.
The Security Council extended the mandate to support the DRC Government of National
Unity and Transition, declared its intention to support security efforts and help provide
security for government-af¬liated institutions and of¬cials in Kinshasa until the Kinshasa
police could take over, help Congolese authorities to maintain order in other strategic areas,
support completion of the electoral process, and ˜˜assist in the promotion and protection of
human rights, with particular attention to women, children and vulnerable persons,
investigate human rights violations to put an end to impunity, and continue to cooperate
with efforts to ensure that those responsible for serious violations of human rights and
international humanitarian law are brought to justice, while working closely with the
relevant agencies of the United Nations.™™
215
The First Situations

with the Court. The ICC undertook extensive communication and negotiation
with MONUC, and although of¬cial agreements were rarely cited by of¬cials,
a working relationship developed on the ground whereby MONUC did assist
the ICC in establishing security, communications, and transport for ICC
personnel.72
At the same time, OTP and Registry personnel connected with NGO
intermediaries to contact potential witnesses to help in the investigation and to
carry the Court™s messages to victims. The NGOs were also crucial in publi-
cizing to victims, witnesses, and the general population what the ICC was
doing and that it was a constructive and trustworthy new arrival in the area.


The Court™s Internal Tensions
In June 2004, the Chief Prosecutor announced that the OTP was formally
opening investigations into the DRC. In July, Court President Philippe
Kirsch assigned the DRC situation to Pre-Trial Chamber I, made up of
judges Claude Jorda, Akua Kuenyehia, and Sylvia Steiner, with Jorda pre-
siding. On July 26, the Court announced:
The International Criminal Court will pay its ¬rst of¬cial visit to the Democratic
Republic of Congo from 26 July to 30 July 2004. Of¬cials of the Of¬ce of the Prose-
cutor and the Registry will hold closed meetings with representatives of the national
authorities, civil society, and international organisations present in the country. The
aim of the visit is to evaluate the possibilities for future cooperation.73

Once the investigation became of¬cial, the PTC had a combination of
responsibilities toward suspects, victims, and witnesses and possibly for
general oversight that remained to be de¬ned in operation. The OTP sought
to maximize its independence and autonomy in pursuit of its investigative
strategy, dealing with victims and witnesses, and establishment of the range
of its discretion leading up to presenting a case in court. The Pre-Trial
Chamber didn™t await communications from the OTP but sought to prod
the Prosecutor; push for streamlined cases; protect defendants, victims, and
witnesses; and stretch the boundaries of its oversight of the OTP. Their
exchanges became rather testy.
On October 15, 2004, PTC I invited the prosecution to an ˜˜informal
meeting.™™ The meeting was held on November 9, but the Prosecutor insisted
that the meeting be recorded and transcribed in order that the record be

72
Interviews.
73
ICC, ˜˜The International Criminal Court to Send Its First Of¬cial Visit to the Democratic
Republic of Congo™™ (2004).
216 Building the International Criminal Court

available for later defense or appeals purposes. At the meeting, the PTC
requested a copy of the agreement between the OTP and the Congolese
authorities and President Kabila™s letter of referral, but the Prosecutor objected
that these were outside of the judges™ authority and raised con¬dentiality
problems, and refused to turn them over. Thereafter, the discussions between
the OTP and PTC were carried out in formal meetings and documents.
Advocates of inquisitorial (civil-law), judicially led procedures view the ada-
mancy of the PTC as improving the balance between it and the OTP; 74
adversarial (common-law), prosecution-oriented observers worry that the
OTP˜s freedom of action is being overly constrained.75
On February 15, 2005, the PTC issued a decision informing the Prose-
cutor that it was calling a ˜˜status conference™™ for March 15, 2005, because
communications to the PTC from the OTP during and following the
informal meeting indicated to the PTC that matters needed to be considered
that would enable the PTC ˜˜to provide, inter alia, for the protection of
victims and witnesses and the preservation of evidence through the holding
of a status conference.™™76
On March 8, the OTP responded, arguing that the PTC was acting
beyond its mandate in ˜˜deciding™™ to call a status conference without ¬rst
apprising the OTP that it was considering such an action and that the OTP
should have the opportunity to ˜˜present arguments on the Chamber™s
authority to convene a status conference during an investigation, a matter
that raises fundamental issues of high institutional importance.™™77 The
Prosecutor argued that the Statute, Rules of Procedure and Evidence (RPE),
and the regulations of the Court ˜˜do not provide any support for a status
conference to be convened during an investigation,™™ that, procedurally,
such a conference could raise concerns about the PTC™s appearance of
impartiality and, that substantively, the information so far supplied to the
PTC did not support the PTC™s conclusion that a status conference was
necessary for the purposes of protecting victims and witnesses or providing
the preservation of evidence. The next day, the PTC rejected the OTP™s
arguments and reaf¬rmed the date of the status conference.78


74
Miraglia, ˜˜The First Decision of the ICC Pre-Trial Chamber: International Criminal
Procedure Under Construction™™ (2006).
75
Interviews.
76
ICC, PTC I, ˜˜Decision to Convene a Status Conference™™ (2005).
77
ICC, PTC I, ˜˜Prosecutor™s Position on Pre-Trial Chamber I™s 17 February 2005 Decision to
Convene a Status Conference™™ (2005).
78
ICC, PTC I, ˜˜Decision on the Prosecutor™s Position on Pre-Trial Chamber I™s 17 February
2005 Decision to Convene a Status Conference™™ (2005).
217
The First Situations

This peevish exchange showed the Prosecutor striving to reduce the
PTC™s oversight of his investigation process, and the PTC seeking to take an
active role at an early stage in Court procedures, justifying this by its
statutory responsibility to protect the rights of possible suspects, victims,
and witnesses. The Prosecutor™s of¬ce tried again, ¬ling on March 11 for
˜˜leave to appeal™™ the rejection of its request to meet on the matter of the
status conference. On March 14 the PTC rejected the request on the
grounds that the OTP had not shown that the matter was signi¬cant from
the standpoint of the fairness or expeditious conduct of the proceedings or
the outcome of the trial,79 and the status conference was held on March 15
as scheduled.
On May 26, 2005, the PTC received applications ¬led on behalf of
six victims of the Congo con¬‚ict with the assistance of the International
Federation of Human Rights Leagues. A series of hearings took place
regarding requests for anonymity and other protective measures in which
the PTC decided, apparently with some contestation by the ad hoc counsel
for the defense, to supply records to the OTP but not to the defense that
included identifying information about the victims.
From May 2005 until January 17, 2006, the PTC considered the appli-
cation for victim representation. For the PTC, the central questions were
whether the Statute, RPE, and regulations of the Court ˜˜accord victims the
right to participate in the proceedings at the stage of investigation of a sit-
uation and, if so, what form such participation should take.™™ It was also up
to the PTC to decide whether the applying six people could actually be
considered victims under RPE Rule 85.80 The OTP challenged the appli-
cations on the grounds that, ¬rst, investigations were not ˜˜proceedings™™
within the meaning of the relevant Statute article81 since ˜˜investigations™™
appeared under the ˜˜Trial™™ section of the Statute; second, that participation
of victims at the investigation stage would be inappropriate; and third, that
the applicants hadn™t shown that their personal interests were affected at the
investigation stage.82 The PTC was seeking to de¬ne its role as protector of
victims and witnesses from the earliest stages of the Court™s activities in
a situation, while the OTP strove to preserve its freedom to conduct its
investigation “ and relations with potential witnesses “ as it saw ¬t.


79
ICC, PTC I, ˜˜Decision on the Prosecutor™s Application for Leave to Appeal™™ (2005).
80
ICC, PTC I, ˜˜Public Redacted Version, Decision on the Applications for Participation in the
Proceedings of VPRS 1, VPRS2, VPRS3, VPRS4, VPRS5, and VPRS6™™ (2006), 7.
81
Rome Statute Article 68(3).
82
ICC, PTC I, ˜˜Public Redacted Version,™™ op cit., 8.
218 Building the International Criminal Court

The PTC rejected the OTP™s arguments, ¬nding that the word
˜˜proceedings™™ in the Statute could refer to any activities of the Court.
Further, there was no inherent reason why victims wouldn™t have an interest
already at the investigation stage. In addition, it found that at the Statute
Conference and in international law in general, there was clear sentiment to
include victims directly in such processes as shown by precedents set by the
European Court of Human Rights and the Inter-American Court of Human
Rights. The PTC also found that the applicants had, according to information
they provided, suffered from crimes under the jurisdiction of the ICC within
the DRC situation, including the murder of spouses and other family
members, loss of property and houses, severe harm as a consequence of
a victim™s abduction and enslavement, torture, lasting physical suffering, and
emotional suffering.
Once again, the Prosecutor requested leave to appeal the PTC™s decision,83
challenging the idea that there could be ˜˜situation victims,™™ as opposed to
victims affected personally by a ˜case™ and the accused of such a case. The
Prosecutor was concerned that such a wide interpretation of the Statute
would imply that anyone who had been victimized in the course of crimes
under the Statute™s de¬nitions since the Court came into existence could be
considered a victim, thus leading potentially to thousands of people seeking
to ˜˜participate™™ even before a particular case or suspect had been identi¬ed.
˜˜Given the massive scale of alleged criminality in the DRC, this ruling could
result in tens of thousands, or hundreds of thousands of individuals, having
the right to participate in the investigation stage.™™84 The OTP was also
concerned that, by approving people as victims, the PTC was prematurely
concluding, ˜˜without any application by the Prosecution for an arrest
warrant or request for con¬rmation of charges, that crimes within the
Court™s jurisdiction had likely occurred, seemingly a usurpation of the
OTP™s leading role in specifying a case.™™85 There were back-and-forth ¬lings
from the victims™ representative and the OTP on leave for permission to
appeal,86 and then the PTC found in favor of according victim status to the

83
ICC, OTP, ˜˜Prosecution™s Application to Leave to Appeal Pre-Trial Chamber I™s Decision
on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS
4, VPRS 5 and VPRS 6™™ (2006).
84
Ibid., 2.
85
Ibid.
86
ICC, PTC I, ˜˜Observations of the Legal Representative of VPRS 1 to VPRS 6 Following the
Prosecution™s Application for Leave to Appeal Pre-Trial Chamber I™s Decision on the
Applications for Participation in the Proceedings of VPRS 1 to VPRS 6™™ (2006); ICC, PTC I,
˜˜Prosecutor™s Reply to ˜Observations of the Legal Representative of VPRS 1 to VPRS 6™ ™™
(2006).
219
The First Situations

applicants at the investigation stage of the proceedings, rejecting essentially all
of the OTP™s arguments.
In February, while considering the OTP™s application for a warrant, the
PTC still sought to steer the OTP™s investigation. A colloquy during the
February 3, 2006, PTC hearing on the OTP™s request illuminated the senses
of duty felt by both sides. PTC judge Jorda asked:
Where is the of¬ce of the Prosecutor heading? We are at the beginning of these
proceedings and this is a very central issue. Do you intend to prosecute
individuals with national-level responsibilities? Or do you intend to limit your
action to individuals who are leaders of militias? As you have said in your own
submissions, there are many militias. It is an inter-ethnic con¬‚ict . . . . So there is
a risk that your Prosecutions and investigations may become “ your efforts may
become rather diffuse, and result in many requests for arrest warrants from this
Chamber. I think it is important that we gain further clarity on this issue at this
stage.87

Prosecution senior trial lawyer Ekkehard Withopf responded that the mid-
and long-term intentions of the prosecution ˜˜do not form part of
the decision-making process of this Pre-Trial Chamber in respect to the
application.™™ He went on to explain, however, the importance of
Lubanga™s UPC, its armed wing the Patriotic Front for the Liberation of
the Congo (FPLC), and the OTP™s conviction that this armed group was
˜˜responsible for the gravest grimes committed in Ituri.™™ He noted that the
OTP was investigating other crimes of other armed groups in the region.
Judge Jorda thanked Withopf, asserting that ˜˜all international courts face
this issue [the course of the prosecution™s investigations],™™ but granting
that ˜˜it is no direct concern of mine. The Of¬ce may do what it wants.™™88
The application was successful, the warrant was issued, and the PTC
seemed to recognize some limits to its oversight of the prosecution™s
operations.
As in the case of the Uganda warrants, the OTP sought to control the
contacts with the DRC, rather than working through the Registry, but the
PTC rejected the request, con¬rming that, as stipulated in the Statute,
communications with the government on the practicalities of the warrant
were the duty of the Registrar. The Chief Prosecutor and the Registrar,
according to some Court employees, were not on speaking terms.89


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